STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


SONJA QUINONEZ, Complainant

BROTOLOC HEALTH CARE SYSTEM, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701271, EEOC Case No. 26G971168


The Complainant has filed a petition for review by the commission of an administrative law judge's order in this matter.

Wis. Stat. § 111.39(5) provides that any party who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order, that if no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.

Section LIRC 1.02 of the Wisconsin Administrative Code provides in relevant part as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. "Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

Wis. Admin. Code § LIRC 4.01 provides in relevant part as follows:

"A petition for commission review of the findings and order of a department of workforce development administrative law judge under s. 111.39 (5) or 106.04, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . ."

The administrative law judge's order having been dated and mailed on December 12, 1997, the last day on which a timely petition for review could have been filed was January 2, 1998. The petition for commission review was received on April 1, 1998.

The complaint in this matter was dismissed because of the Complainant's failure to respond to a certified letter from the Administrative Law Judge dated November 10, 1997. The Complainant asserts that while that certified letter may have come and someone may have signed for it, she never received that letter. However, the commission can not even look at the issue of whether the dismissal of the complaint was proper, unless there is a timely Petition for Review filed from the Order of Dismissal.

The Order of Dismissal was sent to the same address as the Notices of Hearing, and the Complainant acknowledges that she knew of the scheduled hearing date, which shows that she had received mail sent to that address. There is no indication in the file that the Order of Dismissal was returned by the Post Office. The commission therefore finds that the Order of Dismissal was mailed to the Complainant's last-known address on December 12, 1997 and that it was received there in due course, within at most a few days.

The Complainant explains that her house and all her possessions burned on December 28, 1997, and she includes a letter from the Red Cross apparently related to that fire. However, she does not assert that she did not receive the Order of Dismissal which was mailed to her on December 12, 1997, 16 days before the fire.

Even if the Complainant failed to file an appeal because of the disruption in her life caused by the fire which occurred 16 days into the 21-day appeal period, that does not provide a basis for accepting the petition. The only exception allowed by law in the case of a late Petition for Review in these types of cases is that the commission may extend the time for filing such a petition by another 21 days if it finds that a party was prejudiced because of exceptional delay in the receipt of a copy of any findings and order. However, there is no basis for finding that to have occurred here.

The commission therefore finds that the petition for commission review was not timely, and that the petitioner was not prejudiced because of exceptional delay in the receipt of a copy of any findings and order, within the meaning of section 111.39(5) of the statutes. In the absence of a timely filed petition for commission review, the commission is without authority to review the decision of the administrative law judge, and therefore issues the following:

DECISION

The petition for review is dismissed.

Dated and mailed: April 9, 1998
quinons.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Complainant asserts that she received a letter in February stating that she had "90 days to respond to the closed case." This would not have been a piece of correspondence from the Equal Rights Division. There are no 90-day time limits under the Wisconsin Fair Employment Act. The commission believes that this would have been from the EEOC, and to have related to the 90 days within which a person must commence an action in federal court under Title VII once the EEOC has completed its investigation and issued a "Right To Sue" letter.

The Order of Dismissal was sent to the Complainant's last- known address, where she was still living, on December 12, 1997, and it was received there well before the unfortunate fire which forced the Complainant to move. The Petition for Review was not filed within the time allowed. The commission therefore has no option but to dismiss the Petition for Review.

NOTE: Respondent requested an opportunity to file a brief. In view of its decision to dismiss the petition for review, the commission considers it unnecessary to have briefs, and for that reason the respondent's request is denied.

cc: Thomas P. Godar, Attorney for Respondent


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